“Fair use” for backdrop video

Derek Seltzer created Scream Icon in 2003, and subsequently reproduced the image on posters and stickers. These reproductions were displayed on buildings, walls, street signs, and other public spaces around Los Angeles, including, specifically, a wall at Sunset Boulevard and Gardner Avenue. The Scream Icon image was also disseminated online.

In 2008, Richard Staub, a photographer and set designer, took a photograph of a wall “covered with street art and graffiti” at the intersection of Sunset and Gardner. His photograph depicted a “torn and weathered” Scream Icon poster, among others. Subsequently, in 2009, Staub was hired by the Green Day to create video backdrops for Green Day’s 2009-10 concert tour. This job required him to listen to and review all of the songs Green Day expected to perform, so he could visually represent the tone, mood, and theme of each song in the corresponding video backdrop.

Staub listened to East Jesus Nowhere to help him create a video backdrop for the song. The four-minute video backdrop included a composite image based on photograph of the Sunset/Gardner Wall containing the graffiti-covered poster of Scream Icon. Specifically, Staub used the portion of his photograph containing the Scream Icon poster, altered the color and contrast, added a brick background, and then superimposed a red spray-painted cross over the modified image.

His video backdrop was displayed behind Green Day when the band performed East Jesus Nowhere in concerts. The image of Scream Icon was not used on any artwork for Green Day’s 21st Century Breakdown album, on any Green Day merchandise, on Green Day concert tickets, or in any television, print, or internet advertisements.

On March 23, 2010, Derek Seltzer filed action, alleging that Defendants used Scream Icon without permission, authority, or consent. Defendants contend, inter alia, that their use of the Scream Icon image in the video backdrop for East Jesus Nowhere was fair use. The Court agreed with Defendants. The different visual elements Staub added, including graffiti, a brick backdrop, and (especially) the large red cross over the image, considered in connection with the music and lyrics of East Jesus Nowhere, “add something new, with a further purpose or different character” than Seltzer ‘s original work. Although Seltzer is correct that Defendants profited from the concert tour, the commercial significance of Defendants’ use of Scream Icon is minimal, if not negligible. The Scream Icon image was not used on any merchandise, ticket stubs, or advertisements.

The fact that Scream Icon was published and appeared on the internet before Green Day used the image is also critical in determining whether the use of Scream Icon qualifies as fair use. Even though Defendants used substantial portions of Plaintiff’s work, the image of Scream Icon in Staub’s video backdrop was but one of many visual elements used to convey the mood, tone, and meaning of Green Day’s East Jesus Nowhere. There is no evidence that Defendants’ use of Scream Icon in the video backdrop of East Jesus Nowhere harmed the market for Plaintiff’s work.

Given the fundamentally different purposes of the two works, Staub’s use of a modified version of the Scream Icon image in the East Jesus Nowhere video backdrop cannot reasonably be deemed a market substitute for Plaintiff’s original Scream Icon image. The Court concluded that Defendants’ use of Plaintiff’s Scream Icon image is a non-infringing “fair use”.